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The Stolen Families

Duration:
27 minutes
First broadcast:
Wednesday 18 July 2012

John Waite investigates the growing number of international child abduction cases where a parent flees abroad with their children to keep custody and evade the law. So does the law need strengthening to protect the rights of the 'left-behind' parent? And how effective is the international convention which is designed to ensure children are returned home quickly?

Produced by Joe Kent & Jon Douglas
Research by Fiona Napier.

  • John Waite in the Hague

    John Waite in the Hague

  • Shane Clarke in his daughter's bedroom

    Shane Clarke in his daughter's bedroom

  • Transcript

    THIS TRANSCRIPT WAS TYPED FROM A RECORDING AND NOT COPIED FROM AN ORIGINAL SCRIPT. BECAUSE OF THE RISK OF MISHEARING AND THE DIFFICULTY IN SOME CASES OF IDENTIFYING INDIVIDUAL SPEAKERS THE BBC CANNOT VOUCH FOR ITS COMPLETE ACCURACY.

    Waite
    Every year, worldwide, at least 2,000 children are abducted by one of their parents, taken abroad without the consent of the other parent, many never to return. A heart-breaking phenomenon, that's happening more and more.

    Clip
    I think about my children, wonder how they're doing, what they look like, all those silly little things that you think about your kids and that you should know anyway.

    Waite
    This week, we'll be asking whether the law needs strengthening to protect the rights of the 'left-behind' parent. And investigating the international convention that's designed to make sure these children are returned home quickly, but all too often does not.

    Clarke [Watching video of his children]
    That's May the older one. That's Mia.

    Waite
    Mia's the baby?

    Clarke
    Yeah. What's painful is they don't even know who I am anymore. They can't even speak English anymore.

    Waite
    Watching family videos at home in West Bromwich, Shane Clarke desperately misses his two daughters. They're thousands of miles away in Japan - the land not of their birth but of Shane's ex-wife - their mother.

    Clarke
    We were delighted when she got pregnant with May and ah such a beautiful baby. Mia came along two years later and Mia had a smile that would light up a room.

    Ken
    Having children you know it changes your life. I really doted on my - my little boys. It was wonderful seeing them taking their first steps and all the things that little children do.

    Waite
    Ken Spooner is another father missing his children - two sons aged one and three when Ken separated from their mother.

    Ken
    They remained with me during the week and I was actually the primary carer - I stayed living in the family house, she went to stay with her brother - and she had them most weekends.

    Waite
    A few months into the separation, Ken's ex-partner said she'd like to take the boys on holiday to her native Zambia.

    Ken
    I didn't have any problem with that. We wrote out a letter of consent for the trip to assist really her, if you like, in not having any problems with immigration and entering Zambia.

    Waite
    Meanwhile, Shane Clarke's daughters were also off on holiday with their mother. A visit to Japan to see her relatives. Shane joined them later.

    Clarke
    I think it was on the third day we all went to Disneyland together. She then spent the next couple of hours ignoring the children most of the time and messing with her mobile phone, as if she was preoccupied with something - exchanging messages with something. I just said - Look, what's so vital that you're ignoring the children? I picked her phone up and I was going to look at it, that was it, the touch paper had been lit and she snatched May off me and stormed out of Disneyland. She said you're going to Tokyo in the morning and that's it the marriage is over. She wouldn't speak about it, not at all, nothing. Five o'clock the next morning I was wakened and she and her sister put me into the back of the car, drove me to the bus station, said there's your bus, that was it. Got on the bus to Tokyo, while I was sitting there I looked at the ticket and discovered it had been bought before I even went to Japan.

    Waite
    Shane's daughters were aged just six months and two years old when he was forced to leave them on the other side of the world. Ken Spooner learnt over the phone from his ex that his boys - supposedly visiting relatives in Africa - were going to be staying on there for at least three months.

    Spooner
    She wanted to extend her holiday. I clearly stated that I wasn't accepting this, I wasn't going to agree and it became very, very clear that she had no intentions of returning back. So I took legal advice.

    Renton
    We see numbers increasing on an annual basis for child abduction.

    Waite
    Jacqueline Renton is a barrister specialising in international children's law.

    Renton
    It seems to be a combination of more international relationships, more immigration, for example within the EU, free movement of workers has led to easier access across borders and cheap travel.

    Waite
    Most countries have no system in place for dealing with this 'increasing problem', with "left-behind" parents forced to pursue custody through foreign courts often with little knowledge of the legal system or even the language. Ken Spooner's on-going legal case in Zambia has taken nearly four years so far and cost, he says, over £200,000.

    Spooner
    My children have got British passports, British birth certificates, they have my surname, this is their home. Quite honestly I just assumed that surely that there would be something in place to ensure their immediate return.

    Waite
    To Ken's dismay, what his ex-partner did, is not routinely regarded as a criminal offence. Because he gave permission for his sons to leave the country, it's being treated not as child abduction - which would be criminal - but confusingly as child retention.

    Spooner
    When a parent betrays the other parent in taking the children to another country on the pretence of a holiday then it's deemed to be a civil offence. It became apparent to me having spoken to the police here, spoken to the Foreign and Commonwealth Office, having spoken to various experts that there was a loophole in the law that had to be addressed.

    Waite
    What difference do you think it would make if the law was changed or at least made clearer?

    Spooner
    Had I been able to draw to the attention of the Zambian courts that this in fact was a crime then I think that it would have allowed me to have reached a result much quicker. It's a crime against the left behind parents, a crime against the child or children, it's a crime against the left behind family - grandparents, nephews, aunts, uncles - all this of which of course they're also being deprived of a relationship with my children.

    Waite
    Reunite, a charity which works in this field, says that 40% of all the cases it handles have been similarly classified as "wrongful retention", a point of law currently being argued in British courts according to barrister, Jacqueline Renton.

    Renton
    Very recently a division of the high court was asked to interpret in the context of an outgoing abduction whether or not section one of the Child Abduction Act 1984 covered retention as well as removal. Their decision was that the act didn't cover retention but that, as I understand, may be the subject of review on appeal by the CPS and so at the moment it is arguable whether the law needs further clarity or whether the law is clear enough at the moment.

    Waite
    Ken Spooner has at least seen his children during his many legal forays to Zambia. Shane Clarke, however, in the four years since his wife kept his daughters with her in Japan, has only seen them briefly on Skype. From day one though, when he reported what had happened to the authorities, the omens weren't good.

    Clarke
    As soon as I got to Tokyo I went to the British Consulate and they said unfortunately this is a big problem here, it's a growing problem and chances are you'll never see your children again.

    Waite
    Japan has a notoriously poor record of returning abducted children to other countries. Indeed as far as we can ascertain, a Japanese court has never sent a child home. Japan's embassy in London told us priority is given first and foremost to the best interests of the child. Little comfort to Shane Clarke whose eldest daughter's bedroom remains just as it was the day she left four years ago.

    Clarke
    That's her blanket, there's her favourite teddy.

    Waite
    I mean doesn't this break your heart?

    Clarke
    Yeah.

    Waite
    Why do you keep it like a shrine?

    Clarke
    If I move anything from this room then I'm admitting defeat, if I change it I'm letting them go and that I'm not prepared to do.

    Waite
    Well I mean clearly you don't like what your wife has done but in any sense can you understand it - she after all wants what you want which is to be with her children?

    Clarke
    I can understand it and seeing the children I can even support it but there is absolutely no reason to deny me access to them and them access to me, there is absolutely no reason at all. That is cruel, it's cruel.

    Waite
    But for more than 30 years there's been an internationally accepted legal process which clearly outlines how such cases should be handled. It's supervised here in the Hague in Holland. The problem is Japan, Zambia, indeed more than half the world, has not signed up to it. But of those countries that have what should we expect?

    At her offices, Professor Louise Ellen Teitz has primary responsibility for the smooth running of the 1980 Hague Convention on the Civil Aspects of Child Abduction.

    Teitz
    The child who is abducted by a parent and taken in breach of custody rights to another country under the convention, assuming both countries are contracting states, the child must be returned unless - and there are a few defences - but the idea of return and prompt return is to the country of habitual residence with the theory that that country really has the best information about ultimate determinations of custody and other issues concerning the child's best interest.

    Waite
    So where the child was born or their nationality does not matter, all that matters is where they usually live. That's the country to which they should be returned as soon as possible unless those exemptions Professor Teitz mentioned apply. A "grave risk" perhaps that their return would expose them to "physical or psychological harm". The way the convention works is that each country sets up a 'central authority' - an office to deal specifically with such cases - which liaises with its counterparts in other countries. It's a process which aims to ensure that a judgement on child abduction cases is reached speedily - ideally within six weeks.

    Teitz
    When a child is abducted the left behind parent will file an application with the central authority in their country, the country of habitual residence, and that country then contacts the other central authority, they try to locate the child, they also will go ahead and file a petition for return, usually in the courts of that other country where the child has been taken. And there'll be a determination of the proceeding to return the child.

    Waite
    And under the convention in the vast majority of cases that return should be agreed and it should be prompt?

    Teitz
    That is indeed the hope.

    Waite
    A 'hope' that was realised for 'Jim' - not his real name - and to protect the identity of his daughter, his words are spoken by an actor.

    Jim - read
    My ex-partner disappeared with our daughter, it was a period of several weeks before the nature of that disappearance was clarified as an international abduction. And there were lots of factors that were very worrying about their disappearance, you know, the different names that had been used.

    Waite
    Jim's ex had changed her name by deed poll, got a new passport and fled the country with their little girl, ignoring a court ruling that both parents should have joint access. It took three years to finally track them down to North America but then, courtesy of the convention, events moved fast.

    Jim - read
    The Hague process, I think it was very clear from - from both countries, the Hague process completed initially within the course of I think it was 10 days and that order, along with other court orders made in England by the high court, was instrumental in the authorities acting the way they did once our daughter was found and acting in a very timely manner.

    Waite
    "Jim's" ex-partner was extradited and sentenced to two years in prison for child abduction. And the Hague Convention - in helping to return Jim's daughter home - her place of 'habitual residence' - within days of her being found - had worked as it's supposed to.

    Lowe
    I'm a big fan of the convention, I think it brings order and stability to what otherwise would be a potentially chaotic international legal minefield.

    Waite
    Professor Nigel Lowe is head of Cardiff Law School and has carried out several studies on the operation of the Hague Convention. So he knows it works far from perfectly. Last year, research he conducted with members of the convention using figures from 2008 showed that while the number of applications to get children returned was up dramatically, at the same time the number actually being returned was down.

    Lowe
    As compared with our previous study of five years earlier there was an exponential increase in the number of applications, by which I mean as much as 45%. Secondly, we found that applications take longer to be dealt with and thirdly, the proportion of returns were down on previous studies - 46% in 2008 study as against 51% in 2003.

    Waite
    And what concerns do you have about those findings?

    Lowe
    I think they send out warning signs as to the performance - overall performance of the convention. I'm particularly concerned with the time which I think is the essence of Hague cases. So the finding that they are taking longer to be dealt with for me is a worrying one and one that I wish to see addressed.

    Waite
    There are around 200 legal jurisdictions in the world, only 87 of them are signatories to the Hague Convention. And even for them, there are no penalties if they don't follow the convention's rules, as all too many don't. It's a process, we were told, run by consensus and that means delicate diplomacy is required to encourage countries to stay in line. Lord Justice Thorpe is Head of International Family Justice for England and Wales - a model jurisdiction, by common consent, and he says there are others.

    Thorpe
    You could pick out straightaway a dozen, perhaps more, countries that were top class performers.

    Waite
    Like?

    Thorpe
    Well I mean like USA, Canada, New Zealand, Australia.

    Waite
    So who isn't so good, who's at the bottom of the league?

    Thorpe
    Oh good heavens, we, in this world, we are very careful never to name names or to seek to criticise or stigmatise because the whole process depends on consensus. So you hope always that you can uplift some country that's not performing so well by either example or by direct aid.

    Waite
    MPs in parliament, however, are less reluctant to name names. At least in the case of former minister, Stephen Timms.

    Timms - Speaking in the Houses of Parliament
    Mr Speaker, Mexico is a signatory to the Hague Convention on the civil aspects of international child abduction 1980. This requires the determination of abduction cases involving minors within six weeks from the date of commencement of the proceedings.

    Waite
    Mr Timms was raising the matter on behalf of one of his constituents who was struggling to get his child back from Mexico.

    Timms - Speaking in the Houses of Parliament
    Two points I'm keen to underline in this debate. First the length of time it has taken - three years and counting - and second the wider issue of non-compliance of a signatory to an international treaty.

    Waite
    And we've been speaking to another man - Mexican born but living in Britain - who, for almost two and a half years, has also been struggling to get his child back from Mexico. The difficulty in his case, he says, is what's called an 'amparo' - part of Mexican law which recognises a citizen's constitutional human rights.

    Mexican parent
    They told me that they're going to [indistinct words] amparo in July last year and then they said they're going to push it back to August and then September and it has been like that, just pushing pushing back, so until they decide about this amparo then nothing happens. Like you say there's something wrong with how the rules are applied in Mexico in particular, I'm ashamed of that because I'm Mexican.

    Waite
    Mexico has also been singled out by the US authorities, which publish which countries they find to be non-compliant with the Hague Convention. Mexico is one of them - America currently has "enforcement concerns" about it. Indeed for the past five years, Mexico's either been "non-compliant" or demonstrating what the Americans term "patterns of non-compliance".

    Well to get some answers I've come to the Mexican Embassy here in Central London. Doors opened.

    Mexico's Deputy Ambassador in London is Alejandro Estivill.

    Estivill
    I can guarantee you that Mexican authorities have behaved, trying in every case to comply with the Hague Convention and be as swift as possible.

    Waite
    Is the situation that the convention demands one legal process but Mexico has its own and its own will come first and may take longer - is that a fair summary of why there have been these delays?

    Estivill
    As every country in the world there's an international legal system and of course a domestic legal system and in this case the legal and domestic legal system complies with the international legal system in Mexico, of course there has to be a trial in Mexico where legal positions and laws in Mexico have to be complied.

    Waite
    And they come first because the whole point of the convention, as you know, is there shouldn't be a trial in a foreign country, the child is brought back to its place of habitual residence, in these cases the UK, that's where the trial takes place.

    Estivill
    In Mexico the supreme court has resolved quite clearly that the first level is the constitution and the second level are the international commitments on the country, in a third level the Mexican [indistinct words], that's the level that every law has in Mexico.

    Waite
    And you feel the two run together - the demands of the convention and the demands of your own domestic laws - you feel they run together?

    Estivill
    They run together quite well.

    Music

    Waite
    Whatever, the explanation, delays matter because the longer a child stays in a country, the greater the chance of them putting down roots - settling into school, making new friends. So that a judge may later conclude that it is no longer in their best interests to be removed. And so the abducting parent wins the case and keeps the child by default, flying in the face of natural justice. It's a matter close to the heart of Lady Catherine Meyer. She is herself a "left-behind" parent, after her two sons were detained by her ex-husband in a country that is also a signatory to the Hague convention. Because of that, she set up a charity - Parents and Abducted Children Together - which campaigns to improve child protection policies, including the Hague Convention.

    Meyer
    It's working less and less well as opposed to working better. I find that those countries sign up because it looks good, they come home, they don't even have a central authority that actually could handle cases, every country is nationalistic and you can name the examples after examples of children not being returned because that country thinks that their child is better in the country where it's been abducted. The Hague Convention is better than nothing but it is absolutely not fool proof and some countries do not abide by it the way they should.

    Waite
    So what should be done to beef up the convention?

    Meyer
    Give the Hague Convention more teeth, meaning that if the country signs it I would want that country to sign an agreement and saying I will have a central authority of x number of people, my central authority is going to be educated, we're going to educate the judges in our country and every year we will be sending our statistics of how many cases we heard, how many judicial returns and send that back to the Hague so that the Hague can keep an eye on what is going on and then they can name and shame and countries who don't abide properly by the convention they should actually be thrown out. If we go pussy footing like this all the time nothing is ever going to change, we need to be much more firm.

    Waite
    We discussed the concerns you've heard today in Holland with Professor Teitz, First Secretary at the Permanent Bureau of the Hague Conference. As for those policing powers, Professor Teitz told me signatories to the convention had debated that very idea earlier this year …. but voted against it.

    Teitz
    There was concern about the role of neutrality, there was concern that if you had certain enforcement mechanisms smaller countries with limited budgets, several spoke up to the fact that they couldn't possibly meet all the reporting requirements. We have neither the mandate nor I might say the resources to police it.

    Waite
    But Professor Lowe says there are, and these are his words, clear warning signs about the declining performance under the convention.

    Teitz
    Well we are concerned. I think one has to acknowledge that the convention isn't perfect and it isn't implemented perfectly everywhere and there are more cases and fewer resources.

    Waite
    The timing is crucial here, the whole point of this is to get the child back as swiftly as possible, the longer there are those delays the more complicated that becomes doesn't it - time is literally of the essence in these cases.

    Teitz
    Yes it is and realistically we at the permanent bureau cannot change that. We can work with countries but the convention only works as well as the members operate the convention. We work with countries, we do judicial training, we consider those countries that are having numbers that look out of line with other countries, we try to work with them, we encourage countries to twin to work with another central authority that's working more effectively, we come up with guidelines and things to deal with good practices and implementation. We collect statistics, on the other hand we often can only get 15% of the countries to respond. But I guess one has to think about the cases that really have been helped by the convention, the cases that sometimes don't even get filed because parties come to agreement on return without even filing an application because they know of the convention or they're told about the convention and they're told that otherwise this will happen. It's far from perfect but it's immeasurably better than it would be with no convention and no legal framework of cooperation in place.

    Waite
    Professor Louise Ellen Teitz.

    You might be interested to know that Japan is currently working towards joining the Hague Convention but even if that happens, it'll still be too late for Shane Clarke whose two daughters are now growing up there, ever more distant from him with each passing day.

    Clarke
    My only hope is that when the children are old enough I can seek them out and they can seek me out and I can show them all the documentation, I can show them everything and say look I tried everything.

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